Citation Nr: 0635247
Decision Date: 11/13/06 Archive Date: 11/27/06
DOCKET NO. 03-20 711 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Nashville,
Tennessee
THE ISSUE
Entitlement to an initial rating higher than 30 percent for
the period from January 13, 2003, and higher than 50 percent
from March 10, 2005, for a left carpal tunnel syndrome.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
Michael Martin, Counsel
INTRODUCTION
The veteran had active service from June 1971 to January
1973.
This matter came before the Board of Veterans' Appeals
(Board) on appeal from a decision of March 2003 by the
Department of Veterans Affairs (VA) Nashville, Tennessee,
regional office (RO).
The veteran testified before the undersigned Veterans Law
Judge in June 2004. The Board remanded the case for
additional action in September 2004. The requested action
has since been completed, and the case is now ready for
appellate review.
FINDINGS OF FACT
1. During the period from January 13, 2003, to March 9,
2005, the left carpal tunnel syndrome did not result in more
than moderate incomplete paralysis of the median nerve.
2. During the period from March 10, 2005, the left carpal
tunnel syndrome has not resulted in more than severe
incomplete paralysis of the median nerve.
CONCLUSION OF LAW
The criteria for an initial disability rating for left carpel
tunnel syndrome higher than 30 percent during the period from
January 13, 2003 to March 9, 2005, or higher than 50 percent
during the period from March 10, 2005, are not met.
38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. § 4.124a,
Diagnostic Code 8515 (2006).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
Initially, the Board finds that the content requirements of a
duty to assist notice have been fully satisfied. See 38
U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). Letters from the
RO dated in July 2003, January 2004, November 2004 and May
2006 provided the veteran with an explanation of the type of
evidence necessary to substantiate his claim, as well as an
explanation of what evidence was to be provided by him and
what evidence the VA would attempt to obtain on his behalf.
In addition, the letters informed the veteran that he should
submit any additional evidence that he had in his possession.
The VA has no outstanding duty to inform the appellant that
any additional information or evidence is needed.
The veteran's initial duty-to-assist letter was not provided
before the adjudication of his claim. However, after he was
provided the letter he was given a full opportunity to submit
evidence, and his claim was subsequently readjudicated. He
has not claimed any prejudice as a result of the timing of
the letter. The Board also notes that the RO provided notice
with respect to the effective-date elements of the claim in
2006, with subsequent VA process. See Dingess v. Nicholson,
19 Vet. App. 473 (2006). The Board concludes that the appeal
may be adjudicated without a remand for further notification.
The Board also finds that all relevant facts have been
properly developed, and that all evidence necessary for
equitable resolution of the issue has been obtained. The
veteran was afforded VA examinations. His post service
treatment records have been obtained. He has had a hearing.
The Board does not know of any additional relevant evidence
which is available but has not been obtained. For the
foregoing reasons, the Board concludes that all reasonable
efforts were made by the VA to obtain evidence necessary to
substantiate the veteran's claim. Therefore, no further
assistance to the veteran with the development of evidence is
required.
The Board has considered the full history of the injury to
the left wrist. The service medical records show that the
veteran received injuries to the left hand in an
automobile accident in October 1971. A service medical board
report dated in November 1972 shows that the veteran was
found to be unfit for return to full duty due to a crush
injury, thumb, left, postoperative fusion metacarpal
phalangeal joint and interphalangeal joint.
The veteran submitted an original claim for disability
compensation in April 1973. In a decision of May 1973, the
RO granted service connection for a crush injury of the left
thumb postoperative with fusion of the metacarpal phalangeal
and interphalangeal joints, rated as 20 percent disabling.
In January 2003, the veteran requested increased
compensation. In a decision of March 2003, the RO confirmed
the previously assigned 20 percent rating for the left thumb
injury, but granted a separate 10 percent rating for left
carpal tunnel syndrome. The veteran subsequently perfected
the current appeal of the initial rating for the left carpal
tunnel syndrome. Subsequent to the Board's remand in
September 2004, the RO increased the rating to 30 percent
effective from January 13, 2003, to March 9, 2005, and 50
percent thereafter. However, the issue remains on appeal as
the veteran has not indicated satisfaction with those
ratings.
Disability evaluations are determined by the application of a
schedule of ratings which is based on the average impairment
of earning capacity in civil occupations. See 38 U.S.C.A.
§ 1155. Separate diagnostic codes identify the various
disabilities. The assignment of a particular diagnostic code
is dependent on the facts of a particular case. See Butts v.
Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may
be more appropriate than another based on such factors as an
individual's relevant medical history, the current diagnosis,
and demonstrated symptomatology. In reviewing a claim for an
increased rating, the Board must consider which diagnostic
code or codes are most appropriate for application in the
veteran's case and provide an explanation for the conclusion.
See Tedeschi v. Brown, 7 Vet. App. 411, 414 (1995).
The Court has emphasized that when assigning a disability
rating, it is necessary to consider functional loss due to
flare-ups, fatigability, incoordination, and pain on
movements. See DeLuca v. Brown, 8 Vet. App. 202, 206-7
(1995). The rating for an orthopedic disorder should reflect
functional limitation which is due to pain which is supported
by adequate pathology and evidenced by the visible behavior
of the claimant undertaking the motion. Weakness is also as
important as limitation of motion, and a part which becomes
painful on use must be regarded as seriously disabled. A
little used part of the musculoskeletal system may be
expected to show evidence of disuse, either through atrophy,
the condition of the skin, absence of normal callosity, or
the like. See 38 C.F.R. § 4.40. The factors of disability
reside in reductions of their normal excursion of movements
in different planes. Instability of station, disturbance of
locomotion, and interference with sitting, standing, and
weight bearing are related considerations. See 38 C.F.R.
§ 4.45. It is the intention of the rating schedule to
recognize actually painful, unstable, or malaligned joints,
due to healed injury, as entitled to at least the minimal
compensable rating for the joint. See 38 C.F.R. § 4.59.
The veteran's medical records indicate that he is left hand
dominant. 38 C.F.R. § 4.69. Disability in the fields of
neurological conditions is ordinarily to be rated in
proportion to the impairment of motor, sensory, or mental
function. See 38 C.F.R. § 4.120. Neuritis, cranial or
peripheral, characterized by loss of reflexes, muscle
atrophy, sensory disturbances, and constant pain, at times
excruciating, is to be rated on the scale provided for injury
of the nerve involved, with a maximum equal to severe
incomplete paralysis. The maximum rating which may be
assigned for neuritis not characterized by the organic
changes referred to in this section will be that for
moderate, or with sciatic nerve involvement, moderately
severe, incomplete paralysis. See 38 C.F.R. § 4.123.
Neuralgia, cranial or peripheral, characterized usually by a
dull and intermittent pain, of typical distribution so as to
identify the nerve, is to be rated on the same scale, with a
maximum equal to moderate incomplete paralysis. See
38 C.F.R. § 4.124.
Paralysis of the median nerve is rated under 38 C.F.R.
§ 4.124a, Diagnostic Code 8515. The term "incomplete
paralysis" indicates a degree of lost or impaired function
substantially less than the type picture for complete
paralysis given with
each nerve, whether due to varied level of the nerve lesion
or to partial regeneration. When the involvement is wholly
sensory, the rating should be for the mild, or at most,
moderate degree. A 10 percent rating is warranted if there
is mild incomplete paralysis of the median nerve of the major
or minor extremity. A 30 percent rating is warranted if
there is moderate incomplete paralysis of the major
extremity. A 50 percent rating is warranted if there is
severe incomplete paralysis of the minor extremity. A 70
percent rating is assigned for complete paralysis of the
median nerve on the major side with such manifestations such
as the hand inclined to the ulnar side; the index and middle
fingers more extended than normal; considerable atrophy of
the muscles of the thenar eminence; the thumb in the plane of
the hand (ape hand); pronation incomplete and defective;
absence of flexion of index finger and feeble flexion of
middle finger; an inability to make a fist; the index and
middle fingers remain extended; an inability to flex the
distal phalanx of thumb; defective opposition and abduction
of the thumb, at right angles to the palm; weakened wrist
flexion; and pain with trophic disturbances.
Evidence which has been developed in connection with the
claim for a higher rating includes the report of a hand
examination conducted by the VA in February 2003, VA medical
treatment records dated from 2002, testimony given by the
veteran during the hearing held in June 2004, and the report
of a VA examination conducted in March 2005.
After review all of the evidence of record, the Board finds
that during the period from January 13, 2003, to March 9,
2005, the left carpal tunnel syndrome did not result in more
than moderate incomplete paralysis of the median nerve. In
reaching this conclusion, the Board has considered the
veteran's testimony given in June 2004. He stated that as a
result of the left wrist disorder, he sometimes lost the
ability to write and experienced shooting pains going up his
arm. He said that he lost control of the functions of the
hand, and that the hand twitched at night. He also reported
that he sometimes wore a wrist brace. The Board notes,
however, that the findings on the VA examination in February
2003 reflect that the impairment of the median nerve function
is no more than moderate in degree. The report reflects
complaints
of constant pain plus flare-ups associated with overuse. On
examination, however, he still had grip strength of 4/5.
There was no wasting or atrophy, and no evidence of sensory
loss even after repetitions. The Board further notes that a
VA EMG report dated in November 2003 reflects that left
median and ulnar nerve motor and sensory distal latencies and
conduction velocities were noted to be within normal limits
on testing. In light of these findings, neurological
impairment of the median nerve clearly was no more than
moderate in degree, and a higher rating cannot be granted
pursuant to Diagnostic Code 8515.
The Board also finds that a higher rating during the period
from January 13, 2003, to March 9, 2005, is not warranted
under any applicable diagnostic code. There is no indication
of the presence of fusion of the wrist with the hand fixed in
supination or hyper pronation so as to warrant a 40 percent
rating under Diagnostic Codes 5213. There is also no
indication that the veteran has ankylosis of the wrist in a
position other than favorable so as to warrant a 40 percent
rating under Diagnostic Code 5214.
With respect to the period of time March 10, 2005, the Board
finds that the left carpal tunnel syndrome has not resulted
in more than severe incomplete paralysis of the median nerve.
Neither the veteran's testimony, nor the medical evidence,
such as the VA examination in March 2005 reflects that he has
complete paralysis of the median nerve on the major side with
such manifestations such as the hand inclined to the ulnar
side; the index and middle fingers more extended than normal;
considerable atrophy of the muscles of the thenar eminence;
the thumb in the plane of the hand (ape hand); pronation
incomplete and defective; absence of flexion of index finger
and feeble flexion of middle finger; an inability to make a
fist; the index and middle fingers remain extended; an
inability to flex the distal phalanx of thumb; defective
opposition and abduction of the thumb, at right angles to the
palm; weakened wrist flexion; and pain with trophic
disturbances. On the contrary, testing conducted by the VA
in April 2005 reflects that EMG and nerve conduction studies
of the left upper extremity were within normal limits. The
examiner concluded that there was no evidence of carpal
tunnel syndrome on those tests. The
Board notes that the examination report dated in February
2005 reflects that the veteran had probable musculoskeletal
complaints in the left arm that were nonspecific and were not
associated with any major neurologic findings of any type.
Thus, complete paralysis of the median nerve has not been
shown. Accordingly, the Board concludes that the criteria
for an initial disability rating for left carpel tunnel
syndrome higher than 30 percent during the period from
January 13, 2003 to March 9, 2005, or higher than 50 percent
during the period from March 10, 2005, are not met.
The veteran's representative has urged the Board to conduct
an extraschedular evaluation of the veteran's disability.
The potential application of various provisions of Title 38
of the Code of Federal Regulations have been considered but
the record does not present such "an exceptional or unusual
disability picture as to render impractical the application
of the regular rating schedule standards." 38 C.F.R.
§ 3.321(b)(1). In this regard, the Board finds that there
has been no showing by the veteran that his injury to the
left wrist has resulted in marked interference with
employment or necessitated frequent periods of
hospitalization. He has not been hospitalized for this
injury. There is also no competent medical evidence
submitted that the veteran is unemployable due to this
disability or that he has lost significant amounts of time
from work. Although he has indicated that he has
difficulties with tasks at work, such as counting money, the
Board notes that he already has a substantial disability
rating which contemplates a significant degree of industrial
impairment. Under these circumstances, the Board finds that
the veteran has not demonstrated marked interference with
employment so as to render impractical the application of the
regular rating schedule standards. In the absence of such
factors, the Board finds that criteria for submission for
assignment of an extraschedular rating pursuant to 38 C.F.R.
§ 3.321(b)(1) are not met. See Bagwell v. Brown, 9 Vet.
App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227
(1995).
(CONTINUED ON NEXT PAGE)
ORDER
An initial rating higher than 30 percent for the period from
January 13, 2003, and higher than 50 percent from March 10,
2005, for a left carpal tunnel syndrome is denied.
____________________________________________
MARJORIE A. AUER
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs